July 20, 2011
Apprendi Applies to Alternate Fines Act - Corporate Fines Require Jury Determination
In the Northern District of California, the court in United States v. Au Optronics Corporation, et. al (AUO) was faced with the question of whether Apprendi applied to criminal fines that the government was seeking under the alternative fine statute, 18 U.S.C. s 3571(d). The company and nine individuals were charged with price-fixing in violation of the Sherman Act. A Superceding Indictment claimed that the government would seek a criminal fine against the corporate defendants (not the individuals) under the alternative fine statute, which would mean that "the government could seek a fine in this case of up to $1 billion against AUO." The government sought bifurcation into separate guilt and penalty phases and also sought an "order that the evidence presented in the penalty phase need not be presented to a jury." In essence they were arguing that Apprendi did not apply here.
The court saw it differently then the government. Initially two circuits had found that Apprendi applied and even a declaration of the antitrust division had said it was applicable with fines. Then came the case of Oregon v. Ice, where the Court held "that a judge could impose consecutive sentences without any jury findings beyond those of guilt." Following this decision, the First Circuit found that criminal fines were exempt from Apprendi.
The government argued here that the First Circuit decision should be followed because "under historical practices fines fell within the sole discretion of the trial judge."
The problem for the government, however, is that they were relying on dicta from the Ice case. Thus, the court in AUO held that Apprendi's mandate applied here. Hon. Illston states, "[t]he magnitude and primacy of such punishment puts it in a separate class from an ordinary criminal fine imposed against a defendant who faces incarceration." (the government was seeking a fine that could amount to $1 billion, which is "ten times more than the fine authorized by the Sherman Act")
The court also denied the government's request to bifurcate the trial into a guilt phase and penalty phase, stating that "the Court is disinclined to bifurcate without a more substantial showing that a separate penalty phase will save judicial resources."
Court's Order - Download July 18 2011 Order re bifurcation motion
There are two lessons for the government here - 1) there are consequences to overcharging, and 2) stop wasting money.
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